Free Motion in Limine - District Court of Delaware - Delaware

Case 1:06-cv-00275-GMS

Document 103

Filed 03/28/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ) ) Plaintiff, ) ) v. ) ) BRETT J. CORMICK and ELAN SUISSE ) INTERNATIONAL HOLDINGS (USA) ) LLC, ) ) Defendants. ) ____________________________________) ELAN SUISSE, LTD., ) ) Plaintiff, ) ) v. ) ) ROBERT D. CHRIST, ) ) Defendant. ) ____________________________________) ROBERT D. CHRIST,

C.A. No. 06-275-GMS

C.A. No. 07-60-GMS

MOTION IN LIMINE TO BIFURCATE THE TRIAL Defendants Brett J. Cormick and Elan Suisse International Holdings (USA) LLC, and plaintiff Elan Suisse, Ltd., hereby move the Court, pursuant to Fed. R.Civ. P. 42(b), to bifurcate the trial, having Mr. Christ's claims heard first and separately from the other claims. In support thereof, movants state as follows: 1. In separate motions in limine, movants asked the Court to exclude the deposition

testimony of Andre Alan Dean, Graham Lyman, Carl W. Palmer and Gordon Subloo, on the ground that their testimony consists of evidence of prior instances of conduct in violation of F.R.E. 405(b),

Case 1:06-cv-00275-GMS

Document 103

Filed 03/28/2008

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and because the unfair prejudice caused by such depositions outweighs any probative value, and so the evidence violates F.R.E. 403. If the Court grants that motion, this motion is withdrawn. 2. On the other hand, if the Court allows any of those depositions into evidence as part

of Mr. Christ's defense against Dr. Cormick's claims, then the Court should taken efforts to ensure that Dr. Cormick is not prejudiced in his defense against Mr. Christ's claims. 3. The Court has authority to bifurcate a trial in order to avoid unfair prejudice to a

party. Daniels v. Moizzo, 178 F.R.D. 46, 47 (S.D.N.Y. 1998). If all the claims are heard and decided together, the deposition evidence will be heard and considered by the jury. The jury may take into account the deposition testimony in connection with Mr. Christ's claims despite the fact that it would not be admissible in Mr. Christ's affirmative case. Thus, there exists a substantial danger of unfair prejudice to the movants warranting separate trials. Id. at 48 (bifurcating trial to avoid prejudice from introduction of F.R.E. 405(b) evidence). WHEREFORE, for the foregoing reasons, movants respectfully request that the Court bifurcate the trial, first holding a trial on Mr. Christ's claims and, following a jury verdict on those claims, hold trial on the remaining claims. Dated: March 28, 2008 Respectfully submitted,

/s/ David L. Finger David L. Finger (DE Bar ID #2556) Finger & Slanina, LLC One Commerce Center 1201 Orange Street, Suite 725 Wilmington, DE 19801-1155 (302) 884-6766 Attorney for Brett J. Cormick, Elan Suisse International Holdings (USA) LLC and Elan Suisse Ltd.